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EXHIBIT 4.4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
dated as of March 24, 1998 but effective as of October 1, 1997, is entered into
among GAYLORD ENTERTAINMENT COMPANY, a Delaware corporation ("Borrower"), the
banks listed on the signature pages hereof (collectively, "Lenders"), and
NATIONSBANK OF TEXAS, N.A., as Administrative Lender (in said capacity,
"Administrative Lender").
BACKGROUND
A. Borrower, Lenders and Administrative Lender are parties to that
certain Credit Agreement, dated as of August 19, 1997, as amended by that
certain First Amendment to Credit Agreement, dated as of September 30, 1997
(said Credit Agreement, as amended, the "Credit Agreement"; the terms defined in
the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
B. Borrower, Lenders and Administrative Lender desire to make an
amendment to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Lenders
and Administrative Lender covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "EBITDA" set forth in Article I of the Credit
Agreement is hereby amended to read as follows:
"`EBITDA' means, for the Companies, on a consolidated basis,
for the twelve (12) month period preceding any date of determination,
the sum of (a) operating income plus (b) depreciation expense, plus (c)
amortization expense (not including amortization expense related to
program rights and inventories), plus (d) to the extent not already
included in operating income, the lesser of (i) earnings or (ii) cash
distributions received from unconsolidated Subsidiaries, plus (e) for
any period beginning January 1, 1998, to the extent included in
determining operating income, but without duplication with respect to
any non-cash charges set forth in the immediately succeeding proviso,
non-recurring, non-cash charges, if any, minus (f) for any period
beginning January 1, 1998, to the extent included in determining
operating income, non-recurring, non-cash credits, if any; provided,
however, for purposes of calculation of EBITDA for any period of
determination including the month of (y) September, 1997, there shall
be added to EBITDA (to the extent included in determining operating
income) the sum of cash and
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non-cash charges related to (A) the Westinghouse Merger not to exceed
$36,300,000, plus (B) the write-down of television program inventories
at KTVT not to exceed $11,740,000, and (z) December, 1997, there shall
be added to EBITDA (to the extent included in determining operating
income) the sum of cash and non-cash charges related to (A) the
write-down of property, equipment and inventory and for severance and
termination benefits related to the closing of the Opryland theme park
not to exceed $42,006,000, plus (B) the cessation of operations of CMT
Europe not to exceed $5,000,000."
(b) Section 4.4 of the Credit Agreement is hereby amended to read as
follows:
"4.4 Net Worth. Borrower shall not permit Net Worth (a) as of
October 1, 1997 (taking into account the effect of the Westinghouse
Merger) and thereafter up to but not including December 31, 1997 to be
less than an amount equal to the sum of (i) the greater of 90% of Net
Worth on October 1, 1997 (taking into account the effect of the
Westinghouse Merger) or $425,000,000, plus (ii) 50% of the cumulative
Net Income from and including October 1, 1997 through the date of
calculation (but excluding from the calculation of cumulative Net
Income the effect, if any, of any fiscal quarter (or any portion of a
fiscal quarter not yet ended) for which Net Income was a negative
number), plus (iii) 75% of the Net Proceeds received by Borrower or any
of its Subsidiaries from any Equity Issuance occurring on and after
October 1, 1997 up to but not including December 31, 1997, plus (iv)
any increase in stockholders' equity of Borrower pursuant to the
conversion or exchange of preferred Capital Stock of Borrower into
common Capital Stock of Borrower, plus (v) an amount equal to 75% of
the net worth of any Person that becomes a Subsidiary of Borrower or
substantially all of the assets of which are acquired by Borrower or
any of its Subsidiaries to the extent the purchase price therefor is
paid in Capital Stock of Borrower or any of its Subsidiaries, and (b)
as of December 31, 1997 and thereafter to be less than an amount equal
to the sum of (i) 90% of Net Worth on December 31, 1997, plus (ii) 50%
of the cumulative Net Income from and including January 1, 1998 (but
excluding from the calculation of cumulative Net Income the effect, if
any, of any fiscal quarter (or any portion of a fiscal quarter not yet
ended) for which Net Income was a negative number), plus (iii) 75% of
the Net Proceeds received by Borrower or any of its Subsidiaries from
any Equity Issuance occurring on and after January 1, 1998, plus (iv)
any increase in stockholders' equity of Borrower pursuant to the
conversion or exchange of preferred Capital Stock of Borrower into
common Capital Stock of Borrower, plus (v) an amount equal to 75% of
the net worth of any Person that becomes a Subsidiary of Borrower or
substantially all of the assets of which are acquired by Borrower or
any of its Subsidiaries to the extent the purchase price therefor is
paid in Capital Stock of Borrower or any of its Subsidiaries."
(c) The Officer's Certificate-Financial in the form of Exhibit N to the
Credit Agreement is hereby amended to be in the form of Exhibit N to this Second
Amendment.
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2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, Borrower represents and warrants that after
giving effect to the amendments contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as though made on and as of such date, except to the extent that any
such representation or warranty relates expressly to a specified date or is no
longer correct because of a change in circumstances permitted by the Loan
Documents;
(b) no event has occurred and is continuing which constitutes a Default
or Event of Default;
(c) Borrower has full power and authority to execute and deliver this
Second Amendment and the Credit Agreement, as amended hereby, and this Second
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable debtor
relief laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Second
Amendment or the Credit Agreement, as amended by this Second Amendment, will
contravene or conflict with any Law to which Borrower or any of its Subsidiaries
is subject or any indenture, agreement or other instrument to which Borrower or
any of its Subsidiaries or any of their respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any Tribunal or other Person, is required for the execution,
delivery or performance by Borrower of this Second Amendment or the
acknowledgement of this Second Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Second Amendment shall be
effective as of October 1, 1997, subject to the following:
(a) Administrative Lender shall have received counterparts of this
Second Amendment executed by Determining Lenders;
(b) Administrative Lender shall have received counterparts of this
Second Amendment executed by Borrower and acknowledged by each Guarantor; and
(c) Administrative Lender shall have received, in form and substance
satisfactory to Administrative Lender and its counsel, such other documents,
certificates and instruments as Administrative Lender reasonably shall require.
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4. GUARANTOR ACKNOWLEDGEMENT. By signing below, each of the Guarantors
(i) acknowledges, consents and agrees to the execution and delivery of this
Second Amendment, (ii) acknowledges and agrees that its obligations in respect
of its Guaranty are not released, diminished, waived, modified, impaired or
affected in any manner by this Second Amendment or any of the provisions
contemplated herein, (iii) ratifies and confirms its obligations under its
Guaranty, and (iv) acknowledges and agrees that it has no claims or offsets
against, or defenses or counterclaims to, its Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Second Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this Second
Amendment.
(b) The Credit Agreement, as amended by this Second Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of the Administrative Lender in connection with the
preparation, reproduction, execution and delivery of this Second Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Lender with respect thereto and with respect to advising the Lenders as to their
rights and responsibilities under the Credit Agreement, as amended by this
Second Amendment).
7. EXECUTION IN COUNTERPARTS. This Second Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW: BINDING EFFECT. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower and each Lender and their respective successors
and assigns.
9. HEADINGS. Section headings in this Second Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR
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SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to be effective as of the date first above written.
GAYLORD ENTERTAINMENT COMPANY
By:
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Name:
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Title:
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NATIONSBANK OF TEXAS, N.A.
as a Lender, Swing Line Bank, Issuing
Bank and as Administrative Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
-----------------------------------
Title:
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THE FUJI BANK, LIMITED, ATLANTA
AGENCY
By:
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Name:
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Title:
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SUNTRUST BANK, NASHVILLE, N.A.
By:
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Name:
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Title:
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FIRST AMERICAN NATIONAL BANK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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BANQUE PARIBAS
By:
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Name:
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Title:
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By:
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Name:
-----------------------------------
Title:
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WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
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Name:
-----------------------------------
Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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THE SAKURA BANK, LIMITED
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By:
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Name:
-----------------------------------
Title:
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THE SANWA BANK, LIMITED
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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BANK OF TOKYO MITSUBISHI TRUST
COMPANY
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
IDEA ENTERTAINMENT, INC.
By:
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Name:
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Title:
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CNR, INC.
By:
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Name:
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Title:
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GAYLORD BROADCASTING COMPANY, L.P.
By: Gaylord Communications, Inc.,
its General Partner
By:
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Name:
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Title:
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OPRYLAND ATTRACTIONS, INC.
By:
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Name:
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Title:
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OLH, L.P.
By: Opryland Hospitality, Inc.
By:
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Name:
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Title:
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OPRYLAND MUSIC GROUP, INC.
By:
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Name:
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Title:
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